## Facts

- Evelyne Grundy owned waterfront property on Johnson Point in Thurston County, Washington, adjacent to property later acquired by the Brack Family Trust.
- Both properties had seawalls, but the Bracks’ seawall was lower, and winter storms regularly flooded the Bracks’ land while Grundy’s remained dry.
- In 1997 the Bracks sandbagged along their seawall; in 1998 they sought to raise their seawall by roughly 16–18 inches.
- The Bracks obtained state hydraulic project approval and a county determination that a shoreline permit was not required; Grundy received no notice of these governmental actions.
- After the sandbagging and seawall elevation, storm-driven seawater that had previously flooded only the Bracks’ property was redirected onto Grundy’s property.
- During winter storms in 1998–99, seawater reached close to Grundy’s home, destroyed vegetation, and caused damage; Grundy alleged increased risk of severe damage to her residence in future storms.
- Grundy sued the Bracks for private nuisance and challenged the County’s decision exempting the project from Shoreline Management Act permitting.

## Issues

1. Whether Washington’s common enemy doctrine governing surface water bars a private nuisance claim where storm-driven seawater is allegedly redirected onto a neighbor’s property by a raised seawall.
2. Whether seawater from a definite body of water can be treated as “surface water” for purposes of applying the common enemy doctrine.

## Decision

- The Washington Supreme Court reversed the dismissal of Grundy’s private nuisance claim.
- The Court held the common enemy doctrine does not apply to seawater and therefore does not bar the nuisance claim.
- The Court remanded for trial on the merits of whether the Bracks’ seawall modifications constituted a private nuisance.
- The Court did not decide liability; it decided only that dismissal based on the common enemy doctrine was improper.

## Legal Principles

- The common enemy doctrine permits landowners to protect their property from diffuse surface water (e.g., runoff) but is limited to water lacking a definite, identifiable body.
- “Surface water” is generally vagrant or diffuse water spread over land that does not maintain its identity as a body of water.
- Storm-driven seawater from Puget Sound remains part of a definite and identifiable body of water and is not “surface water” within the meaning of the common enemy doctrine.
- Even where the common enemy doctrine applies, it is limited by duties of due care and prohibitions against unnecessarily injuring neighboring property.

## Conclusion

The court held that seawater from Puget Sound is outside the scope of the common enemy doctrine, so a landowner cannot use that doctrine to defeat a private nuisance claim alleging that seawall modifications redirected storm waves onto a neighbor’s property; the nuisance claim must be resolved on its facts at trial.


Grundy v. Thurston County, 117 P.3d 1089 (Wash. 2005)